JUDGMENT S.U. Khan, J.
1. This is landlord's writ petition arising out of eviction/release proceedings initiated by him against respondent Nos. 2 and 3 Lalta Prasad and Babu Singh respectively on the ground of bona fide need, under Section 21 of U.P. Rent Regulation Act (U.P. Act No. 13 of 1972). Each tenant is independent tenant of one room. At the time of filing the release application landlord was residing in a room in between the two rooms in tenancy occupation of each of the two tenants. Release application was registered as Rent Case No. 61 of 1983 on the file of Prescribed Authority/IIIrd Additional Civil Judge, Kanpur. The release application was filed under Section 21(1)(a) and (b) of U.P. Act No. 13 of 1972. Prescribed authority through judgment and order dated 6.4.1985 allowed the release application only under Section 21(1)(b) of the Act and rejected the same under Section 21(1)(a) of the Act by holding that building was in dilapidated condition but landlord did not bona fidely require the same. Against the said judgment and order two appeals were filed one by landlord numbered as Rent Appeal No. 31 of 1987 and the other by tenants numbered as Rent Appeal No. 69 of 1985. Both the appeals were heard together by IXth A.D.J., Kanpur. IXth A.D.J. through judgment and order dated 21.10.1987 allowed the appeal of the tenant and dismissed the appeal of the landlord. The result of the said judgment was that release application of the landlord filed under both the provisions stood completely dismissed. The said judgment is being challenged by the landlord through this writ petition.
2. During pendency of the writ petition Babu Lal-respondent No. 3 vacated the room in his tenancy occupation and handed over the possession of the same to the landlord. He has also not engaged any counsel.
3. The Prescribed Authority found that the family of the landlord consisted of eleven members. However, his need was denied on the ground that he was also having a tenanted house. Commissioner had reported that the accommodation of one room situate in between the two tenanted accommodations and which was in possession of the landlord was not in living condition. The Prescribed Authority after recording the said fact held that :
At the same time it could not be denied that he had no further accommodation at his disposal.
4. This approach is so perverse and illogical that it cannot be approved. A tenanted accommodation available to the landlord cannot be a ground to reject his release application vide G.K. Devi v. Ghanshyam Dass and Dhanna Lal v. Kalawati Bai .
5. Prior to filing of release application giving rise to the instant writ petition, landlord had filed another release application against one of the tenants Babu Singh-respondent No. 3 on the ground of bona fide need. The said release application was dismissed and appeal filed against the said order being Rent Appeal No. 412 of 1980 was also dismissed on 17.2.1982. The release application giving rise to the instant writ petition was filed on 2.2.1983, i.e., eleven and a half months from the date of dismissal of the earlier appeal. The lower appellate court held that release application was barred by Rules 18(2) of the Rules framed under the Act. According to the said Rule if release application is rejected and a fresh application on the same ground is filed within a period of one year from that decision, the Prescribed Authority shall accept the findings in those proceedings as conclusive. Firstly, the said rule applies only in between same landlord and tenant. The earlier release application was filed against respondent No. 3 and respondent No. 3 has already vacated the premises during pendency of this writ petition. Secondly, period of one year will be counted from the decision of the Prescribed Authority. If appeal filed against the said decision is dismissed, the period of one year provided under the aforesaid Rule will not be counted from the date of dismissal of appeal. The reason behind the above Rule is that within a year position of the need does not substantially change. However, after one year it may change. Before the Prescribed authority the position of need as prevailing until final decision of the release may be brought on record as of right. However, during pendency of appeal subsequent developments cannot be brought on record as of right. The appellate court simply said that as earlier release application had been rejected against the respondent No. 3 Babu Singh hence it would be deemed that landlord had no bona fide need. The view of the appellate court was utterly erroneous in law.
6. No useful purpose will be served by remanding the matter to the appellate court for two reasons. Firstly, bona fide need is writ large on the face of the record and secondly, the matter is quite old. The Supreme Court has held that when the matter is quite old, remand must be avoided vide R.C. Keshwani v. Dwarika Prasad 2002 (2) ARC 298 (SC) and R.E.V. Gounder v. V.V.P. Temple 2004 (1) ACJ 304 (SC). The learned Counsel for tenant respondent No. 2-Lalta Prashad has not been able to show anything against the bona fide need of the landlord.
7. Regarding comparative hardship there is nothing on record to show that tenant has made any effort to search alternative accommodation. The rent is Rs. 5 per month. The property in dispute is situate in Kanpur. Respondent No. 2 Lalta Prasad has saved a lot of money by paying virtually no rent. Money saved is money earned. It has been held by the Supreme Court in B.C. Bhutada v. G.R. Mundada , that after filing of release application on the ground of bona fide need tenant must make efforts to purchase or take on rent alternative accommodation and if he does not do so then this failure itself is sufficient to tilt the balance of comparative hardship against him. As in the instant case tenant-respondent No. 2 did not show that he made any efforts to search alternative accommodation hence question of hardship has to be decided against him.
8. I have held above that landlord bona fidely requires the building in dispute hence there is no need to decide as to whether building is in dilapidated condition or not and whether landlord has got the capacity to reconstruct the building or not as required by Rule 17 of the Rules framed under the Act.
9. Accordingly, writ petition is allowed. Both the impugned orders are set aside. Release application of the landlord against respondent No. 2 is allowed. Respondent No. 2-tenant is granted six months' time to vacate provided that within one month from today he files an undertaking before the Prescribed Authority to the effect that on or before the expiry of the aforesaid period of six months he will willingly vacate and handover possession of the property in dispute to the landlord-petitioner. For this period of six months tenant shall deposit Rs. 3,000 before Prescribed Authority as damages for use and occupation (at the rate of Rs. 500 per month). The amount so deposited shall at once be paid to the landlord-petitioner. In case of default in compliance with either of these conditions tenant-respondent No. 2 shall be evicted through process of court after one month.